Rule 25. Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.

This rule goes back to the 1864 Geneva Convention and was repeated in the subsequent Geneva Conventions of 1906 and 1929.[1] It is now set forth in the First, Second and Fourth Geneva Conventions of 1949.[2] Its scope was expanded in Article 15 of Additional Protocol I to cover civilian medical personnel in addition to military medical personnel in all circumstances.[3] This extension is widely supported in State practice, which generally refers to medical personnel without distinguishing between military or civilian medical personnel.[4] It is also supported by States not, or not at the time, party to Additional Protocol I.[5]

Under the Statute of the International Criminal Court, “intentionally directing attacks against … personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in international armed conflicts.[6] This war crime is relevant to medical personnel because they are entitled to use the distinctive emblems of the Geneva Conventions.

Numerous military manuals recall the obligation to respect and protect medical personnel.[7] Under the legislation of many States, it is a war crime to violate this rule.[8] Furthermore, the rule is supported by official statements and reported practice.[9]

This rule is implicit in common Article 3 of the Geneva Conventions, which requires that the wounded and sick be collected and cared for, because the protection of medical personnel is a subsidiary form of protection granted to ensure that the wounded and sick receive medical care.[10] The rule that medical personnel must be respected and protected is explicitly stated in Additional Protocol II.[11] In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against … personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in non-international armed conflicts.[12] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[13]

Respect for and protection of medical personnel is included in military manuals which are applicable in or have been applied in non-international armed conflicts.[14] It is an offence under the legislation of a large number of States to violate this rule in any armed conflict.[15] The rule has also been invoked in official statements relating to non-international armed conflicts.[16]

No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged attacks against medical personnel have generally been condemned by States.[17] International organizations have also condemned violations of this rule, for example, in the context of the conflicts in Burundi, Chechnya, El Salvador and the former Yugoslavia.[18] The ICRC has called upon parties to both international and non-international armed conflicts to respect this rule.[19]

The term “medical personnel” refers to personnel assigned, by a party to the conflict, exclusively to the search for, collection, transportation, diagnosis or treatment, including first-aid treatment, of the wounded, sick and shipwrecked, and the prevention of disease, to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term medical personnel includes:

(i) medical personnel of a party to the conflict, whether military or civilian, including those described in the First and Second Geneva Conventions, and those assigned to civil defence organizations;

(ii) medical personnel of National Red Cross or Red Crescent Societies and other voluntary aid societies duly recognized and authorized by a party to the conflict, including the ICRC;

(iii) medical personnel made available to a party to the conflict for humanitarian purposes by a neutral or other State which is not a party to the conflict; by a recognized and authorized aid society of such a State; or by an impartial international humanitarian organization.

This definition is set out in Article 8(c) of Additional Protocol I and is widely used in State practice.[20] The essence of the definition is that medical personnel have to be exclusively assigned to medical duties in order to enjoy the specific protection to which they are entitled. If the medical assignment is permanent, respect and protection are due at all times. If the medical assignment is only temporary, respect and protection are due only during the time of that assignment. Only medical personnel assigned to medical duties by a party to the conflict enjoy protected status. Other persons performing medical duties enjoy protection against attack as civilians, as long as they do not take a direct part in hostilities (see Rule 6). Such persons are not medical personnel and as a result they have no right to display the distinctive emblems. Canada’s Code of Conduct thus explains that:

NGOs such as CARE and Médecins Sans Frontières (Doctors Without Borders) might wear other recognizable symbols. The symbols used by CARE, MSF and other NGOs do not benefit from international legal protection, although their work in favour of the victims of armed conflict must be respected. Upon recognition that they are providing care to the sick and wounded, NGOs are also to be respected.[21]

The term “military medical personnel” refers to medical personnel who are members of the armed forces. The term “civilian medical personnel” refers to medical personnel who are not members of the armed forces but who have been assigned by a party to the conflict exclusively to medical tasks.

The same general definition was originally included by consensus in the draft of Additional Protocol II but was dropped at the last moment as part of a package aimed at the adoption of a simplified text.[22] As a result, Additional Protocol II does not contain a definition of medical personnel and the term medical personnel, as used in non-international armed conflicts, may be understood in the same sense as that defined in Additional Protocol I.[23] It can be inferred from the definition initially put forward in the draft of Additional Protocol II and the negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols that “medical personnel” means those persons assigned, by a party to the conflict, exclusively to the search for, collection, transportation, diagnosis or treatment, including first-aid treatment, of the wounded, sick and shipwrecked, and the prevention of disease, to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term medical personnel includes:

(i) medical personnel of a party to the conflict, whether military or civilian, including those assigned to medical tasks of civil defence;

(ii) medical personnel of Red Cross or Red Crescent organizations recognized and authorized by a party to the conflict;

(iii) medical personnel of other aid societies recognized and authorized by a party to the conflict and located within the territory of the State where the armed conflict is taking place.

The negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols indicate that, owing to the specific nature of non-international armed conflicts, the above examples differ in two respects from those listed for international armed conflicts. First, the term “Red Cross or Red Crescent organizations” was used in order “to cover not only assistance provided on the Government side but also already existing Red Cross groups or branches on the side opposing the Government and even improvised organizations which had come into existence only during the conflict”.[24] It should be noted in this respect that the term “Red Cross (Red Crescent, Red Lion and Sun) organizations” is also used in Article 18 of Additional Protocol II.[25] Secondly, the drafting committee had deemed it necessary to specify that aid societies other than Red Cross organizations must be located within the territory of the State where the armed conflict is taking place “in order to avoid the situation of an obscure private group from outside the country establishing itself as an aid society within the territory and being recognized by the rebels”.[26]

State practice contains the following specifications with respect to the meaning of the term “respect and protection”. According to the UK Military Manual and US Field Manual, the term “respect and protection” means that medical personnel “must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper functions”.[27] Germany’s Military Manual and Switzerland’s Basic Military Manual contain a similar understanding.[28] Spain’s LOAC Manual states that protection includes the duty to defend, assist and support medical personnel when needed.[29] The military manuals of Benin, Croatia, Madagascar, Nigeria and Togo state that medical personnel may not be attacked, and must be allowed to carry out their tasks as long as the tactical situation permits.
[30] Additional Protocol I also requires that “if needed, all available help shall be afforded to civilian medical personnel in an area where civilian medical services are disrupted by reason of combat activity”.[31] Additional Protocol II requires that medical personnel “be granted all available help for the performance of their duties”.[32]

The principle that medical personnel must not be punished for providing medical assistance is the subject of Rule 26.

Military manuals and national legislation emphasize that medical personnel who engage in hostile acts lose the specific protection to which they are entitled.[33] This exception is linked to the requirement that such personnel be exclusively assigned to medical duties for them to be accorded respect and protection. Also, under the protection regime – which constitutes a corollary of the duty to care for the wounded and sick – specific protection is due because the wounded and sick are being cared for. Spain’s LOAC Manual explains that:

It must be underlined that the protection of medical personnel is not a personal privilege but rather a corollary of the respect and protection due to the wounded and sick, who must be treated humanely in all circumstances. … Medical personnel lose the special protection to which they are entitled if they commit acts of hostility. Such behaviour might even constitute perfidy if in so doing they take advantage of their medical position and the distinctive emblems.[34]

Whereas the First Geneva Convention and Additional Protocol I provide for the loss of protection of medical units and transports in case they are used to commit, “outside their humanitarian function, acts harmful to the enemy”, Additional Protocol II provides for the loss of protection in case they are used to commit “hostile acts, outside their humanitarian function”.[35] According to the Commentary on the Additional Protocols, the meaning of both terms is the same.[36] Although these provisions specifically apply to medical units, the rule on loss of protection contained therein can be applied by analogy to medical personnel.

In general, taking a direct part in hostilities, in violation of the principle of strict neutrality and outside the humanitarian function of medical personnel, is considered an act harmful to the enemy. This means that if medical teams are incorporated into combat units and their medical personnel bear arms and take a direct part in hostilities, they are not entitled to protection. However, neither the mere caring for enemy wounded and sick military personnel nor the sole wearing of enemy military uniforms or bearing of its insignia can be considered a hostile act. As explained below, the equipment of medical personnel with small arms to defend themselves or their patients and the use of such arms for this purpose do not lead to loss of protection. Furthermore, in analogous application of the similar rule applying to medical units, it is not to be considered a hostile act if medical personnel are escorted by military personnel or such personnel are present or if the medical personnel are in possession of small arms and ammunition taken from their patients and not yet handed over to the proper service.

State practice indicates that the protected status of medical personnel does not cease if they are equipped with light individual weapons solely to defend their patients or themselves against acts of violence, for example, against marauders. If they use such weapons in combat against enemy forces acting in conformity with the law of war, notably to resist capture, they forfeit their protection.

This interpretation was first set out in the 1906 Geneva Convention and repeated in the 1929 Geneva Convention.[37] It is now codified in the First Geneva Convention and Additional Protocol I.[38] It was also included by consensus in the draft of Additional Protocol II but dropped at the last moment as part of a package aimed at the adoption of a simplified text.[39] It is clear that in practice protection of medical personnel against violence will be as important in situations of non-international armed conflict as in those of international armed conflict. In addition, at the Diplomatic Conference leading to the adoption of the Additional Protocols, the USSR stated that this rule was necessary, even in non-international armed conflicts, for medical personnel who disarmed a wounded soldier would otherwise forfeit their right to protection, unless they threw away the weapon.[40]

Numerous military manuals specify that the carrying of light individual weapons does not deprive medical personnel of their protected status.[41] According to Germany’s Military Manual, such “individual weapons” are pistols, submachine guns and rifles.[42] The Military Manual of the Netherlands provides the same interpretation of the term and adds that it excludes machine guns or other weapons that have to be handled by more than one person, weapons intended for use against objects, such as missile launchers and other anti-tank weapons, and fragmentation hand grenades and the like.[43] These understandings are based on the discussions at the Diplomatic Conference leading to the adoption of the Additional Protocols.[44]

At the Diplomatic Conference leading to the adoption of the Additional Protocols, the United States agreed that the carrying of arms by civilian medical personnel should not be considered as an act harmful to the enemy, “but in occupied territories or in areas in which fighting was taking place, the right of the party in control of the area to disarm such personnel should be reserved”.[45]

[22] Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 11(f) (ibid., § 14).

[23] See the declaration to this effect by the United States (ibid., § 15) and the practice at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 150); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, §§ 4661–4665.